Legislative Mandates of the Endangered Species Act and
a Plea for Consistent Use of Technical Terms

By: Jay O'Laughlin

Introduction

The Endangered Species Act (ESA) is a public policy for protecting,
and improving the status of, plants and animals whose continued existence
is imperiled. ESA policy consists of a legislative statute, administrative
regulations and guidelines, and judicial rulings. The ESA statute includes
hortatory declarations such as the purpose of the Act (ESA § 2), definitions
(ESA § 3), and mandates for executive agencies. These mandates include
interagency cooperation (ESA § 7) and substantive outcomes, such as
a list of protected species and their recovery plans (ESA §
4) and protection against take (ESA § 9). (See Sidebar
for definitions of underlined terms.)

Understanding the goals of the ESA statute and the Act's implementation
mechanisms can enhance species conservation programs by improving
communication among interested parties. Describing ESA ends and means with
consistent and precise use of ESA-defined terms facilitates discussion
of and improvements to implementation issues.

An Endangered Species UPDATE article by a U.S. Fish and Wildlife Service
(FWS) official (Clark
1996) reviewing the ESA's legislative mandates did only a partial job,
in my opinion. Personal or agency viewpoints sometimes obscured the underlying
statutory requirements and several terms were misused. For example, by
stating that the ESA is a "clear public policy...to prevent the destruction
of nature's diversity," Clark (1996) was offering an interpretation
of ESA policy, not describing a legislative mandate. "Diversity"
is a term absent from the ESA, however, "destruction" is used
in section 7 in reference to critical habitat. The ESA's imperfect
blend of biological science and law (Rohlf 1991) makes understanding its
mandates anything but clear.

The ESA's mandates can be explained by analyzing the three key parts
of the statutory design­identification, protection, and recovery (O'Laughlin
and Cook 1995). First, Clark (1996) clearly explained identification, which
is the section 4 process for listing threatened or endangeredspecies. Second, she described protection as the "primary objective"
of the ESA program (Clark 1996). However, she inexplicably omitted section
7 jeopardy and critical habitat protections, while section
9 take protection was adequately explained. Third, although Clark
considers recovery to be the "ultimate purpose" of the Act (Clark
1996), she substituted some interpretations for mandates. For example,
Clark said the FWS oversees recovery activities, but failed to mention
that section 4(f) mandates the FWS to develop and implement recovery plans.
Finally, although they are not mandates, Clark (1996) also described how
responsibilities for marine animals are split between agenciesÑthese
assignments have far-reaching implications deserving more discussion than
was provided.

The statute mandates that federal agencies neither jeopardize
listed species nor adversely modify their critical habitat.
In her brief discussion of section 7, Clark (1996) failed to mention the
two protection provisions of the ESA's "Interagency Cooperation":
jeopardy protection and habitat protection.

Jeopardy protection

Clark stated that the Interior Secretary, acting through the FWS, "oversees
the protection and conservation of fish, wildlife, and plants found
to be in serious jeopardy" (Clark 1996). This use of jeopardy
adds confusion and vagueness by inconsistently using a technical term.
"Seriously imperiled" would have been a more appropriate phrase,
especially when Clark used "imperiled" in a similar context in
her concluding paragraph. Absent from the ESA statute or regulations, "imperiled"
is convenient for avoiding repetitive use of "threatened and
endangered."

Jeopardy is a vague standard used for protecting listed species.
Section 7 provides statutory protection by mandating that any action by
a federal agency may not jeopardize the continued existence of a listed
species. Through the consultation process defined in section 7, the FWS
or the NMFS must provide a written statement, called a biological opinion,
if a federal action may jeopardize a species. "Jeopardize"
is not defined in the ESA statute, but is in FWS regulations (see Sidebar).
There are no degrees of jeopardy in the ESA.

Habitat protection

Discussion herein separates ESA statutory requirements for protecting
habitat for imperiled species from implementation of the Act by
the FWS. This analysis should not be construed as an attempt to diminish
the crucial importance of habitat protection in many speciesconservation
programs.

According to Clark (1996) "the ESA is habitat-oriented. It seeks
to conserve 'the ecosystems upon which endangeredspecies
and threatenedspecies depend.'" This interpretation
is inconsistent with mandates and statutory design. One of the purposes
of the ESA is to "provide a means whereby the ecosystems upon which
endangeredspecies and threatenedspecies depend
may be conserved" (ESA § 2(b)). The means to this end is the
listing of individual species (NRC 1995).

The ESA statute is species-oriented. To say otherwise, one would
have to argue that protection of critical habitat is the same as
ecosystem conservation. The critical habitat approach can
effectively protect ecosystems only if it is pursued rigorously (NRC 1995).
The FWS does not do so; less than 15% of the listed species have
designated critical habitat.

Furthermore, the ESA definition of conserve (see Sidebar)
applies to species, not their habitat, and conservation involves
actions to promote species recovery. Such actions may or may not
include habitat protection, depending on the role of habitat as one of
five factors considered in listing determinations. The other factors considered
are overutilization, disease or predation, regulatory inadequacy, and other
impacts on continued existence (ESA § 4(a)). Actions benefiting a
listed species would generally benefit an ecosystem in which the species
is a component, however, other parts of the same ecosystem may be adversely
affected by managing for listed species. For example, southern sea
otter conservation efforts negatively affect fisheries and abalone
(Wendell 1996) and sea urchin populations, with largely unknown ecological
effects on kelp forests and associated coastal organisms (VanBlaricom 1996).

Congress intended that the ESA would protect habitat through the critical
habitat feature, however, the FWS prefers to use its discretionary
authority to protect habitat in a way not envisioned by Congress (Houck
1993). Using the harm definition, the FWS protects habitat for listed
species regardless of whether or not it is critical; i.e., essential
for conservation (see Sidebar).
The regulatory definition of harmÑa component of the statutory
definition of take (see Sidebar)Ñrenders
critical habitat meaningless (Bean 1983). In 1995, the controversial
definition of harm was upheld by the Supreme Court (Babbitt v.
Sweet Home Chapter of Communities for a Great Oregon, 115 S.Ct. 2407,
1995).

Critical habitat has not been designated for the southern sea
otter, as is the case with more than 85% of listed species. By ignoring
the term "critical habitat" and stating that federal agencies
must protect "important habitat," Clark (1996) avoided the contentious
issues associated with critical habitat. For example, the FWS is
required to designate critical habitat under section 4 and protect
it from destruction or adverse modification under section 7 except when
it is imprudent or undeterminable (50 C.F.R. § 424.12(a)). In addition,
critical habitat designation is a legislative mandate enforceable
through judicial review, as in Northern Spotted Owl v. Lujan (758
F. Supp. 621, W.D. Wash. 1991). Critical habitat issues have been
analyzed elsewhere (see Tobin 1990, Murphy and Noon 1991, Houck 1993, O'Laughlin
and Cook 1995).

Recovery

Recovery is the "ultimate purpose" of the ESA program (Clark
1996). By identifying the responsibilities of the regulatory agencies as
"overseeing recovery activities for listed species," Clark
(1996) may have understated their role, depending on what "overseeing"
might mean. Section 4(f) mandates that the "...Secretary shall develop
and implement [recovery] plans for the conservation and survival of [listed]
species." This mandate is a more compelling directive than
"overseeing recovery activities."

Clark (1996) mentioned the southern sea otter translocation law (Publ.
Law 99-625) as requiring the FWS to develop and implement a recovery plan,
but neglected to say that section 4(f) mandates that a recovery plan provide
"objective, measurable criteria...that the species be removed
from the list," as well as "estimates of the time required and
the cost to carry out those measures needed to achieve the plan's goal."
The agencies implementing the ESA are thus mandated to plan and implement
activities that will result in the recovery and subsequent de-listing of
the species.

Agency responsibilities

Almost all ESA implementation tasks are assigned to the Secretaries
of the Interior and Commerce Departments (ESA § 3(15)). Nevertheless,
all federal agencies have an affirmative duty to conservespecies
(ESA § 7).

Agency assignments for marine animals do not follow any prescribed protocol.
Interior, through the FWS, is responsible for manatees, walruses, sea otters,
and polar bears; whereas Commerce, through the National Marine Fisheries
Service (NMFS), is responsible for seals, whales, dolphins, porpoises,
and sea lions. These assignments were made following the creation of the
NMFS in 1970 and had nothing to do with protecting endangeredspecies;
instead they reflect the agencies' interests, abilities, preferences and
a spirit of compromise (Tobin 1990).

The FWS generally argues that the agency should have some responsibility
for all species at risk of extinction. For example, following the
ESA's enactment in 1973, the FWS and NMFS resolved a jurisdictional dispute
over sea turtles: the NMFS has jurisdiction when turtles are at sea, the
FWS when turtles come on land to lay their eggs.

Either the FWS did not vie for responsibility or the agency's efforts
carried little weight when the first population of anadromous fish, the
winter-run Sacramento River chinook salmon (Oncorhynchus tshawytscha),
was listed in 1990. Soon after, three salmon populations native to Idaho's
Snake River and its tributaries were also listed. The NMFS has jurisdiction
for salmon throughout their life cycle, including when the fish move from
the ocean into fresh water to spawn in their natal streams and rivers.
This brings the NMFS into Idaho, hundreds of miles from the marine environment,
where the agency is responsible for recommending changes in activities
on or near federal land that may affect freshwater ecosystems, including
grazing, logging, mining, and recreation.

Conclusion

The ESA raises fascinating economic, institutional, and political issues
that will not soon fade (Tobin 1990). Because of the controversies associated
with these issues, we should use language to precisely and clearly separate
facts from values. Legislative mandates are matters of fact and deserve
to be presented as such. Even though the statute is only one part of ESA
policy, it is a good starting point for understanding policy implementation.
Vague definitions aside, the ESA is a clear statement of a national commitment
to protect imperiled plants and animals and improve their situation. Personal
values and agency interpretations masquerading as fact muddy up, rather
than clarify, our understanding of implementation issues and inhibit debate
about socially acceptable means to attain the ESA goal.

Acknowledgments

J. Michael Scott and Philip S. Cook provided helpful comments
on the draft manuscript. This is Contribution no. 837 of the University
of Idaho's Forest, Wildlife and Range Experiment Station.

Literature cited

Bean, M. J. 1983. The evolution of national wildlife law.
Praeger, New York.

Clark, J. R. 1996. Overview of the legislative mandates
and the agencies responsible for implementation of southern sea otter protection
under the Endangered Species Act. Endangered
Species UPDATE 13(12):28-30.

Houck, O. A. 1993. The Endangered Species Act and its
implementation by the U.S. Departments of Interior and Commerce. University
of Colorado Law Review 64(2):277-370.

Jay O'Laughlin is Director, Idaho Forest, Wildlife and Range Policy
Analysis Group (PAG), and Professor, Department of Forest Resources, University
of Idaho, Moscow, ID. The PAG was created by the Idaho legislature in 1989
as a research unit of the University of Idaho's College of Forestry, Wildlife
and Range Sciences, with a legislative mandate to provide objective data
and analysis of natural resource issues of interest to the citizens of
Idaho.